JUDGMENT OF 15. 12. 1971 — JOINED CASES 51 TO 54/71 INTERNATIONAL FRUIT COMPANY v PRODUKTSCHAP GROENTEN EN FRUIT

In Joined Cases 51 to 54/71 Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven for a prelirninary ruling in the action pending before that court between

THE COURT composed of: R.Lecourt, President, J.Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Dormer, A. Trabucchi, R. Monaco (Rapporteur) and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Written observations submitted under Article 20 of the Statute of the Court

A — Observations submitted by the plaintiffs in the main action

B — Observations submitted by the Government of the Kingdom of the Netherlands

C — Observations submitted by the Commission of the European Communities

Grounds of judgment

The first question

Second question

Costs

I —. Facts and procedure

1. In implementation of the principles laid down in Regulation No 23 of 4 April 1962 (OJ, English Special Edition, 1959-1962, p. 97), on 9 December 1969 the Council issued Regulation No 2513/69 (OJ 1969, L 318) on the coordination and standardization of the treatment accorded by each Member State to imports of fruit and vegetables from third countries. The first sentence of Article 1 (1) of this regulation prohibits, otherwise than in the case of contrary Community provisions and derogations decided bv the Council.

2. In May 1970 the plaintiffs in the main action applied to the Produktschap voor groenten en fruit (hereinafter referred to as the PGF) for import certificates in respect of dessert apples from third countries.

3. The negative decision or me PGF was based on the abovementioned regulations of the Council and of the Commission of the European Communities and the provisions of Netherlands legislation based on the In- en Uitvoerwet (Law on Imports and Exports). Article 2(1) of the In- en Uitvoerbesluit landbouwgoederen 1963 (hereinafter referred to as the 1963 decision), adopted in implementation of the said law, prohibits the import and export of certain goods including apples, without the authorization of the Minister for Agriculture and Fisheries. The Vrijstellingsbeschikking landbouwgoederen EEG 1968/1 (hereinafter referred to as the first decision of 1968), supplemented by a later decision of 1968, further provides that no import licence is necessary in the particular case of dessert apples from third countries.

4. In the course of the procedure in the main action the plaintiffs argued inter alia

5. By a judgment of 30 July 1971 the College van Beroep voor het Bedrijfsleven decided to stay the proceedings and to request the Court of Justice to give a preliminary ruling under Article 177 of the EEC Treaty on the following questions:

6. Pursuant to Article 20 of the Protocol on the Statute of the Court written observations were lodged by the plaintiffs in the main action, by the Government of the Kingdom of the Netherlands and by the Commission of the Euronean Communities.

II —. Written observations submitted under Article 20 of the Statute of the Court

A —. Observations submitted by the plaintiffs in the main action

1. With regard to the first question the plaintiffs in the main action observe that the fact that national authority of the State, such as the Minister for Agriculture, is empowered on the basis of national legislation to conduct national policy with regard to Community trade in agricultural products does not automatically imply under Netherlands law that such an authority is also empowered to cooperate in the implementation of the Community policy in the same sphere. This is why it was necessary, with regard to the powers conferred upon the Member States by Regulation No 459/70, to enact a provision under Netherlands law clarifying the EEC powers of the national authority entrusted with their exercise. Nevertheless this does not imply that powers conferred by a regulation upon a Member State cannot be transferred to a national authority by means of legislation if a rule of Community law itself provides for such transfer.

B —. Observations submitted by the Government of the Kingdom of the Netherlands

C —. Observations submitted by the Commission of the European Communities

(a). Do the provisions of the Member States prohibiting imports and exports without a licence (the issue of which depends solely on the decision of the national authorities to be taken in each individual case) constitute quantitative restrictions on imports or exports or measures having equivalent effect within the meaning of the articles cited by the national court?

(b). If so, do such provisions also constitute quantitative restrictions or measures having equivalent effect where exemptions are granted to the prohibition which they lay down.

(c). If no exemptions are granted must the said provisions still toe so described even if the import certificate or licence is invariably issued on request?

1. By a judgment of 30 July 1971 which was received at the Court Registry on 2 August 1971, the College van Beroep voor het Bedrijfsleven requested the Court to give a preliminary ruling on the interpretation of various provisions of the Treaty and of rules of secondary law together with tie content of various concepts adopted by the Treaty and those rules.

2. The Court is first of all asked whether the fact that various provisions of the Treaty and of regulations confer powers or impose obligations upon the Member States implies that the latter may only transfer those powers or obligations to national authorities by express provision.

3. Although under Article 5 of the Treaty the Member States are obliged to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty, it is for them to deterrnine which institutions within the national system shall be empowered to adopt the said measures.

4. The answer to the first question must therefore be that when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State.

5. The second question asks whether the concepts of quantitative restrictions on imports and measures having equivalent effect or of quotas referred to by Articles 30 to 32 and 34 of the Treaty and by Regulations Nos 159/66 (OJ 1966, No 192) and 2513/69 (OJ 1969, L 318) also apply to national legislative provisions prohibiting imports and exports without a licence but which in fact are not applied because exemptions are granted from the prohibition and, where this is not so, because the licence is always issued on request.

6. The question put refers both to the system of quantitative restrictions on intra-Community trade and the system of such restrictions on trade with third countries.

7. It is however clear from the scheme of the Treaty that those two systems must be distinguished.

8. Under Articles 30 and 34(1) of the Treaty quantitative restrictions and measures having equivalent effect are prohibited between Member States both with regard to imports and exports.

9. Consequently, apart from the exceptions for which provision is made by Community law itself those provisions preclude the application to intra-Community trade of a national provision which requires, even purely as a formality, import or export licences or any other similar procedure.

10. On the other hand in trade with third countries the application of quantitative restrictions and of measures having equivalent effect forms part of the common commercial policy under Article 113 of the Treaty and the provisions on the common agricultural policy, in particular Article 40(3), which provides for the establishment of common machinery for stabilizing imports or exports.

11. It emerges from the file submitted to the Court that the dispute brought before the College van Beroep voor het Bedrijfsleven arose in the context not of intra-Community trade but of the application of Regulation No 2513/69 which is concerned solely with the systems of importing fruit and vegetables produced in third countries.

12. Consequently, the question put by the national court must be considered in relation to the system of external trade so defined.

13. Article 1(1) of Regulation No 2513/69 provides that unless otherwise stated in Community provisions or derogations adopted by the Council there shall be prohibited the application of any quantitative restrictions on imports from third countries and all measures having equivalent effect.

14. Article 2 of this regulation provides that derogations may be made from this principle if the Community market in one or more of the said products is in danger of undergoing owing to imports or exports, serious disturbances capable of jeopardizing the objectives of Article 39 of the Treaty.

15. The question put to the Court thus involves an examination of whether Regulation No 2513/69 can be implemented in a Member State by means of legislation based on the principle of a general prohibition on imports unless a licence is granted, with appropriate exemptions, or applied in accordance with the system of all licences granted in so far as Community law provides for freedom of trade with third countries.

16. The prohibition arising from Article 1 of Regulation No 2513/69 is not absolute since, as is clear from recitals 5 and 6 of the preamble and from the provisions of Articles 1 and 2 themselves, the Member States may be empowered to take certain protective measures in particular in the case of a threat of disturbance of the markets through imports from third countries.

17. The application of a body of rules laid down by legislation and based on a general prohibition on imports without a licence, in conjunction with a system of general exemptions, is thus, in the present state of the law, compatible with the general scheme of Regulation No 2513/69.

18. In the present state of the law the all licences granted system is not incompatible with the general scheme of this regulation if licences are automatically issued to every applicant free of charge and without delay.

19. The costs incurred by tne Government or the Kingdom or the Netherlands and by the Commission of the European Communities which submitted observations to the Court are not recoverable. As those proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 30 to 32, 34, 40 and 113; Having regard to Regulation No 2513/69 of the Council of 9 December 1969 (OJ 1969, L 318); Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven, by the decision of that court of 30 July 1971, hereby rules:

1 When provisions of the Treaty or of regulations confer powers or impose obligations on Member States for the purposes of the implementation of Community law the question of how such powers are to be exercised and whether the States may entrust the implementation of such obligations to specific national authorities is solely a matter for the constitutional system of each State.

2 The application of a body of rules laid down by legislation and based on a general prohibition on imports without a licence, in conjunction with a system of general exemptions, is, in the case of imports from third countries which are subject to Regulation No 2513/69, compatible with the general scheme of that regulation.